EDWARD PERUTA, ET AL.
CALIFORNIA, ET AL.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
petition for a writ of certiorari is denied.
Thomas, with whom Justice Gorsuch joins, dissenting from the
denial of certiorari.
Second Amendment to the Constitution guarantees that
"the right of the people to keep and bear Arm[s] shall
not be infringed." At issue in this case is whether that
guarantee protects the right to carry firearms in public for
self-defense. Neither party disputes that the issue is one of
national importance or that the courts of appeals have
already weighed in extensively. I would therefore grant the
petition for a writ of certiorari.
generally prohibits the average citizen from carrying a
firearm in public spaces, either openly or concealed. With a
few limited exceptions, the State prohibits open carry
altogether. Cal. Penal Code Ann. §§25850, 26350
(West 2012). It proscribes concealed carry unless a resident
obtains a license by showing "good cause, " among
other criteria, §§26150, 26155, and it authorizes
counties to set rules for when an applicant has shown good
county where petitioners reside, the sheriff has interpreted
"good cause" to require an applicant to show that
he has a particularized need, substantiated by documentary
evidence, to carry a firearm for self-defense. The
sheriff's policy specifies that "concern for
one's personal safety" does not "alone"
satisfy this requirement. Peruta v. County of San
Diego, 742 F.3d 1144, 1148 (CA9 2014) (internal
quotation marks omitted). Instead, an applicant must show
"a set of circumstances that distinguish the applicant
from the mainstream and cause him to be placed in harm's
way." Id., at 1169 (internal quotation marks
and alterations omitted). "[A] typical citizen fearing
for his personal safety-by definition-cannot distinguish
himself from the mainstream." Ibid, (emphasis
deleted; internal quotation marks and alterations omitted).
As a result, ordinary, "law-abiding, responsible
citizens, " District of Columbia v. Heller, 554
U.S. 570, 635 (2008), may not obtain a permit for concealed
carry of a firearm in public spaces.
are residents of San Diego County (plus an association with
numerous county residents as members) who are unable to
obtain a license for concealed carry due to the county's
policy and, because the State generally bans open carry, are
thus unable to bear firearms in public in any manner. They
sued under Rev. Stat. §1979, 42 U.S.C. §1983,
alleging that this near-total prohibition on public carry
violates their Second Amendment right to bear arms. They
requested declaratory and injunctive relief to prevent the
sheriff from denying licenses based on his restrictive
interpretation of "good cause, " as well as other
"relief as the Court deems just and proper." First
Amended Complaint in No. 3:09-cv-02371, (SD Cal.)
¶¶149, 150, 152. The District Court granted
respondents' motion for summary judgment, and petitioners
appealed to the Ninth Circuit.
thorough opinion, a panel of the Ninth Circuit reversed. 742
F.3d 1144. The panel examined the constitutional text and
this Court's precedents, as well as historical sources
from before the founding era through the end of the 19th
century. Id., at 1150-1166. Based on these sources,
the court concluded that "the carrying of an operable
handgun outside the home for the lawful purpose of
self-defense . . . constitutes "bear[ing] Arms'
within the meaning of the Second Amendment."
Id., at 1166. It thus reversed the District Court
and held that the sheriff's interpretation of "good
cause" in combination with the other aspects of the
State's regime violated the Second Amendment's
command that a State "permit some form of carry
for self-defense outside the home." Id., at
Ninth Circuit sua sponte granted rehearing en banc
and, by a divided court, reversed the panel decision. In the
en banc court's view, because petitioners specifically
asked for the invalidation of the sheriff's "good
cause" interpretation, their legal challenge was limited
to that aspect of the applicable regulatory scheme. The court
thus declined to "answer the question of whether or to
what degree the Second Amendment might or might not protect a
right of a member of the general public to carry firearms
openly in public." Peruta v. County of San
Diego, 824 F.3d 919, 942 (2016). It instead held only
that "the Second Amendment does not preserve or protect
a right of a member of the general public to carry
concealed firearms in public." Id., at
924 (emphasis added).
should have granted certiorari in this case. The approach
taken by the en banc court is indefensible, and the petition
raises important questions that this Court should address. I
see no reason to await another case.
banc court's decision to limit its review to whether the
Second Amendment protects the right to concealed carry-as
opposed to the more general right to public carry-was
untenable. Most fundamentally, it was not justified by the
terms of the complaint, which called into question the
State's regulatory scheme as a whole. See First Amended
Complaint ¶63 ("Because California does not permit
the open carriage of loaded firearms, concealed carriage with
a [concealed carry] permit is the only means by which an
individual can bear arms in public places");
id., ¶74 ("States may not completely ban
the carrying of handguns for self-defense"). And
although the complaint specified the remedy that intruded
least on the State's overall regulatory
regime-declaratory relief and an ...